Weatherford v. Northwestern Mut. Ins. Co.

• Decision Date: 25 January 1966
• Citation: 239 Cal.App.2d 567,49 Cal.Rptr. 22
• Court: California Court of Appeals Court of Appeals
• Parties: Lillian WEATHERFORD et al., Plaintiffs and Appellants, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, a corporation, Defendant and Respondent. Civ. 29074.

Page 22

49 Cal.Rptr. 22

239 Cal.App.2d 567

Lillian WEATHERFORD et al., Plaintiffs and Appellants, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, a corporation, Defendant and Respondent.

Civ. 29074.

District Court of Appeal, Second District, Division 2, California.

Jan. 25, 1966.

Rehearing Denied Feb. 17, 1966.

Hearing Denied March 22, 1966.

Murchison, Cumming, Baker & Velpmen, John Baker, and Henry F. Walker, Los Angeles, for plaintiffs and appellants.

John W. Moran, Los Angeles, for defendant and respondent.

FOX, Justice. ^*

This is an action for declaratory relief under a policy of public liability insurance. Plaintiff sues individually and as executrix of her deceased husband's estate.

The agreed facts are as follows:

Bert Smith Van Lines, Inc., a corporation, hereafter referred to as the Van Co., was the owner of a certain 1962 Chevrolet 2-ton truck. William E. Weatherford and Lillian Weatherford were husband and wife, and were officers of said corporation.

On April 2, 1962, respondent company issued its policy of public liability insurance on said Chevrolet truck, insuring as named insureds the Van Co. and William and Lillian Weatherford. The effective date of this policy was May 1, 1962. It ran for a period of one year and provided uninsured motorists coverage.

By written request dated April 27, 1962, signed by Mr. Weatherford, one of the named insureds, Northwestern was authorized to '* * * delete uninsured motorists coverage from my above policy.' This letter was entirely typewritten except for the two signatures, 'Wm. E. Weatherford' and 'Lillian Weatherford', and both of these signatures were in the handwriting of Mr. Weatherford. Mrs. Weatherford did not authorize her husband or anyone else to sign her name to that letter. In fact she did not have any knowledge of this letter until after Mr. Weatherford's death. Following the two handwritten signatures by Mr. Weatherford, there is stamped 'Bert Smith Van Lines' but there is no signature affixed for or on behalf of the latter.

Mr. Weatherford delivered the letter to the agent of the insurance company, and as a consequence thereof, that portion of the premium charged for uninsured motorists coverage was deducted from the premium for said policy, and by written indorsement, signed by an authorized agent of the insurance company, the uninsured motorists coverage was deleted from the policy.

On December 13, 1962, while operating the Van Co.'s Chevrolet truck in a careful and prudent manner, and as a proximate result of the negligence of an uninsured motorist, Mr. Weatherford was killed.

Findings of fact and conclusions of law were waived.

The court held that the written agreement between Mr. Weatherford and the insurance company effectively deleted from the policy the uninsured motorists coverage. Judgment was therefore rendered for defendant. Plaintiff has appealed.

We have concluded that under the facts of this case and the language of the applicable statute we must affirm the judgment.

Section 11580.2, as amended in 1961, of the California Insurance Code, provided, in pertinent part:

'(a) * * * The insurer and any named insured may by agreement in writing delete the provision covering damage caused by an uninsured motor vehicle. Such deletion by any named insured shall be binding upon every insured to whom such policy or endorsement provisions apply. * * *

'(b) * * * the term 'named insured' means only the individual or organization named in the declarations of the policy * * *; the term 'insured' means the named insured and the spouse of the named insured * * * and any other person while in or upon * * * an insured motor vehicle * * *.' (Emphasis added.)

In resolving the issue here presented the trial judge, in a brief Memorandum Decision, stated:

'The statute in question [as quoted above] is unambiguous and makes the agreement to delete by one 'named insured' binding upon all 'insureds' which includes all 'named insureds.' The word 'any' as used in this statute means one and not all. The wisdom of so providing is for the legislature and not the courts.'

The court further noted that 'The conclusion above reached is fortified by the fact that the statute as originally enacted in 1959 was somewhat unclear as to who could agree to waive the uninsured motorists coverage (see Opinion of the Attorney General, 3/8/60, No. 59/243), and the 1961 amendment was obviously intended to clarify and simplify the waiver procedure.' We agree with the foregoing analysis and conclusions.

The change in the 1959 statute by the 1961 legislature deserves some amplification. The earlier statute read as follows: '[P]rovided, however, that the insurer and the insured may by supplemental agreement waive application of the provision covering damage caused by an uninsured motor vehicle.' (Emphasis added.) It is apparent that there was an ambiguity or uncertainty in the language of the statute. As a consequence the Board of Supervisors of San Bernardino County requested an interpretation by the Attorney General as to whom was meant by the words 'the insured' used in the statute. In a lengthy opinion the Attorney General discussed this ambiguity. (Vol. 35, p. 71 of Attorney General's Opinions.) The 1961 legislature, as the trial judge noted, obviously undertook to clarify the ambiguity in the earlier statute. In place of the words 'the insurer and the insured', used in the 1959 enactment, it changed the language to '[t]he insurer and any named insured.'

In this connection it is to be noted that the language was not changed from 'the insured' to 'the named insured.' If such had been the case, there might be some validity to appellant's argument that the singular should include the plural and that there was still an ambiguity which should be resolved against the company and in favor of coverage.

However, the change...